The claimant is claiming from the defendant compensation for maintenance expenditure on her son C, and payment of compensation for distress. On the 29th January 1990, the witness Dr P, who worked as consultant in a district hospital maintained by the defendant, carried out a sterilisation in the form of a vasectomy on the defendant’s husband, the witness M, at his and the claimant’s request. As the husband was still capable of procreating despite the operation, the son C was born on the 15th January 1991 as the sixth child of the claimant and her husband. The claimant, whose claim is also based on the transferred right of her husband, claims that the explanation which he was given by the witness Dr P, or the junior doctor Dr G, about the possibility of a failure of the sterilisation was insufficient. She thinks that he should have had his attention drawn to the fact that the outcome of the operation could only be finally assessed after the carrying out of a spermogram four weeks after the operation. Besides monthly maintenance of DM 430 for the child, the claimant has applied for compensation for distress of DM 1000 for herself, because she had suffered from severe pains from the third month of her pregnancy.
The Landgericht allowed the claim. The Oberlandesgericht rejected it in relation to compensation for maintenance. The claimant’s appeal in law was successful and the defendant’s cross appeal was rejected.
2. The claimant’s appeal in law was successful, because the appeal court was wrong in rejecting the claim for compensation for maintenance.
According to the constant case law of this senate, the contractual claim to compensation against a doctor who is responsible for a failed sterilisation in principle also includes maintenance expenditure for a child who is conceived and born as a result of this mistake (references omitted)...
a) There is an alternative view, according to which maintenance expenditure for a child could not be a harm. In favour of this view, it has to be admitted that classifying the economic burdens which parents incur as a result of a child’s birth as ‘harm’ in the sense of liability law had to be alien to the general understanding and to the legal order as long as the events leading to the child’s birth were to a large extent not at the disposition of parents. That only changed after medical progress enabled these events to be more reliably controlled and – by contraceptive measures or sterilisation – the conception of a child to be prevented. The undeniable consequence of this development is that the potential parents can themselves determine to what extent they want to subject themselves to the expenditure which children bring with them.
Therefore, as a result of medical progress, contracts with a doctor became imaginable which are aimed at making a parent incapable of having children, and therefore at avoiding conception and birth of children. The reference to medical progress should admittedly not be taken to mean that every development in medicine must lead to its consequences being seen as legally permissible, and every imaginable contract in this respect being placed under the protection of the legal order without closer examination. Nevertheless, contracts by which a legally competent human being intends to terminate his capacity to reproduce by a medical operation do not give rise to any doubts about their legal effectiveness (references omitted). In particular, with such contracts – in contrast, for instance, to abortions – no conflict can arise with the right to life of a child who has already been conceived (references omitted). According to the view of this senate, it corresponds with the right of every human being to self-determination, protected by constitutional law, that decisions about terminating his own power to procreate must be left to him. It is true that the exercise of this right may be barred to the individual on personal, ethical or religious grounds, in the same way that the state, on the other hand, cannot force anyone to make use of this right or – seen in relation to the doctor – to conclude such a contract in contradiction of his personal values.
If, however, the patient claims this right to terminate his own capacity to reproduce, and if the doctor gets involved in this, he must fulfil this contract according to the general principles of civil law (reference omitted). If he makes a mistake here as a result of which, contrary to the purpose of the contract, a child is born, the doctor has to take responsibility in liability law for fulfilment of the contract and therefore, in principle, in accordance with § 249 of the BGB, put his contracting partner in the position he would have been in if he had fulfilled the contract properly. As it is obvious in this case (as it frequently is in sterilisation cases) that the contract is made with the doctor for the very purpose of avoiding the economic burdens of a child (reference omitted), his liability extends to freeing the contracting partner from the economic burdens which were to be avoided by fulfilment of the contract. It thus includes the need for maintenance which the senate, on the grounds set out in BGHZ 76, 259 (270ff.) = NJW 1980, 1452 = LM § 276 (Fc) BGB Nr. 7/8, has modelled on the standard maintenance for illegitimate children, increased by an appropriate supplement (to be measured by the judge of fact), which compensates for the value of the care services which the child additionally receives. In this respect, it is precisely in the case of those contracts which are aimed at sterilisation on economic grounds that the purpose of the contract presupposes that, when the contract’s objective is not attained, the harm essentially consists in maintenance expenditure for the child.
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